In January 2006 I went out for a late night bike ride with my camera and my tripod and returned having snapped several of these letters. I posted them to flickr and added some musings about whether or not the complete alphabet was in the area.

People started leaving comments on the photos saying that they knew where some of the missing letters were and within two days I'd completed the lot. Putting them together in one image like this was the obvious thing to do... so I did it. Individually I don't think the pictures are much cop... but together I think they look quite nice.

Anyway, this soon became one of my most popular images on flickr. By October 2007 it had been viewed by nearly 160,000 people. It had received 100s of comments and favourites from fellow flickr users. It was published in a Brazilian magazine and linked to by hundreds of blogs and was one of the first image search results for words like typeface, font and alphabet. It was linked to by the brilliant Boing Boing, and by Wikipedia as a reference on Eine's page... all of which kept the views turning over long after it had been buried beneath all my other photos.

But I can only tell you the number of views/favourites/comments etc. up to October 11th 2007 because that's the last record of it at its original url in the internet archive.

Unfortunately, on February 17th this year, Flickr - who are owned by Yahoo! - deleted the image from their servers. The page it was on disappeared... and with it, all the comments, favourites, and the record of its views disappeared too. That stuff matters only because I'm vain... but every blog that linked to it now has a broken link that goes nowhere and that matters because links are what make the internet the internet. With all those links broken, 6 years worth of photo-sharing has been undone.

I don't have a beef with Flickr for deleting the image. They didn't do so because they wanted to or because they were being bloody minded. They did it because they had to. By law. It's down to the Digital Millennium Copyright Act.

Sites like flickr - and yahoo, twitpic, youtube, yfrog, facebook, blogger, wordpress etc etc - allow their users to upload content. If they were held responsible for every bit of content on their sites the way a print publisher is responsible for the content of their magazines/newspapers etc then they simply couldn't function. To avoid being sued for breach of copyright they would have to check each bit of content before publishing it. Which is impossible. (There are more than 6 billion pictures on flickr already... who'd look through them all and how would they check who owned the copyright?)

So instead of being responsible for them they abide by the terms of the DMCA. Which means that when someone else sends them a legal notice saying that their copyright has been breached they have to take it at face value and remove the content. No questions asked. It gets deleted. They don't have to check to see if it makes sense - in many cases it would be impossible to know anyway - they just have to delete the content.

And that's why my picture was deleted. Because someone else - a company called Wasteland Inc. had told flickr/Yahoo! that they were the rightful copyright holders. It crossed my mind that maybe Ben Eine was behind it. It seemed unlikely... the letters are painted in public places and it would be impossible to claim nobody could photograph them. And I received an email from Ben a few days ago confirming that he had nothing to do with it and didn't have a problem with the photo.

I knew that the copyright for that image was mine, so I got in touch with Yahoo! and worked out how to file a counterclaim. Which means I sent a legal notice - under threat of perjury - asserting that I was the copyright holder and again, Yahoo! has no choice but to follow procedure. They passed my counterclaim on to Wasteland, Inc who then had 14 days to decide if they wanted to continue to fight by sending a court order to restrain me! 14 days later, Yahoo! wrote to me telling me that I could repost the picture. [EDIT (MARCH 7) According to the terms of the DMCA, they - the service provider - are supposed to replace the content they removed. They haven't done this. I do have a beef with flickr about that, because reposting it doesn't achieve all that replacing would.]

But reposting it doesn't bring the comments/views/favourites back and nor does it put it back at the same url which would preserve the links. They're all gone for good. The picture's life from January 12 2006 is destroyed... instead it is reborn on March 2, 2012, its history wiped. (At least we share a birthday)

I googled, 'Wasteland, Inc.' to see if I could find out who they were and why they had thought they owned the copyright to a picture I'd made. That suggested a secondhand clothes store in the US (and online) but when I asked if they were responsible, they came back saying that it had nothing to do with them. I believed them.

So I went to the Chilling Effects website to see if I could find a record of any other DMCA activity from anyone called Wasteland Inc. I could.

It seems that Wasteland, Inc. are pornographers (bondage and fetish if you're asking) and they've employed a company called Degban to file copyright complaints on their behalf. They were doing so in January/February 2012... so it seems highly likely that they're somehow responsible for my picture being deleted. (And not just mine... they also filed a copyright complaint against a picture of some canal hardware.)

So I looked up Degban. Their website describes them as a multimedia copyright protection company... and says, "Whether you are a multi national media conglomerate, Community based music label, a University owned publishing house or just an independent multimedia producer, Degban can rescue you from the plague that is Digital content piracy."

I'm not sure how many community based music labels or University owned publishing houses they represent. It doesn't take much googling to establish that they work, almost exclusively - if not wholly exclusively - for the porn industry. Which might explain why they recently hired a former porn model, Ella Black, as a spokesperson. (I don't have a problem with that by the way, pornographers are just as entitled to copyright as anyone else... but it does serve to make them landing at my picture even more bizarre and unlikely.)

I emailed them and had no response. I called them and nobody answered the phone. So I did some digging. I discovered the CEO is a man called Taban Panahi. He's on facebook, but he didn't respond to the message I sent him there. He recently joined PenpalParty too... but I decided not to try and be his penpal.

But I did eventually find, an @degban.com email address for their spokesmodel, Ella... and using that, I took a guess at one for Taban. I sent them both an email... and at last, Taban has replied.

Degban make all sorts of spurious blind-them-with-science claims on their website. It's not easy to understand quite what they're claiming because their use of the English language is a bit creative - although it is good to know that their client care team isn't just made of people who are only pleasant - but I think they're claiming that they have some kind of automatic detection software running and an automatic process that then files thousands of takedown notices a day. Or an hour. Or whatever sounds most impressive.

So in my email I asked Taban and Ella to see if they could explain the process. It can't just be automated because every time you file a DMCA notice you have to do so under threat of perjury. But if it involves a person, with eyes, looking at the image and deciding that, yup, they do need to deal with it... then how the hell did they wind up filing against me?

Here's Taban's reply. I can't say it's all that convincing:

Hello Dave

I do apologize for the inconvenience, we have been victim of a phishing/hacking attack, which was aimed at reducing our credibilityamong clients and the public as you can see how, I truly am sorrythat you were effected as such, but allow to humbly suggest thatyou channel a part of your anger at those holier than thou hackerswho effect users like yourself by such irresponsible actionswe are working hard to fix the matter, but alas we can not do muchas the size of the attack was larger than we could have expected

I am hoping you can manage to get back your traffic and are neveraffected by such issue ever again

YoursTaban Panahi

Degban Ltd.

Which is either bullshit - which is worrying... or true... which is even more worrying.

It could be that he doesn't have any automatic detection software and that all Degban do is manually send out as many DMCA notices as they can with little regard to the truth behind them because all they want to do is show their clients that they've had x-hundred replies saying that content has been removed. Which is worrying because whoever you are, if you have photos, or videos, or songs or words on the internet somewhere, you could find your host is one day forced into deleting some of them because Mr Panahi - or someone else in his industry - is simply showing off to a pornographer.

Of course it could also be that they do have some kind of automated process running without any human intervention. In which case this is worrying. Because whoever you are, if you have photos, or videos, or songs or words on the internet somewhere, you could find your host is one day forced into deleting some of them because a computer is working on an algorithm so schonky, it can wrongly identify, say, a picture of some street art, as, say, some fetish porn.

Or it could be that Taban Panahi is telling the truth. Which is worrying. Because whoever you are, if you have photos, or videos, or songs or words on the internet somewhere, you could find your host is one day forced into deleting some of them because one of Mr Panahi's rivals has hacked into his site and sent deliberately false and malicious copyright claims to them in order to discredit him.

Either way, it surely adds up to the same thing. Degban - and the DMCA claims they file - can't be trusted.

I don't have a problem with people trying to enforce copyright. But I don't think the DMCA is the way to do it if it's this easy to get wrong. (According to this, 37% of notices are not valid copyright claims)

Every single bit of content you and I have online can potentially be destroyed. Either because Degban - or companies like them - are incompetently/negligently scattergunning DMCA notices around hither and thither, or because their industry is worth enough money to encourage the kind of skulduggery Taban describes so convincingly in his email. Does it really matter which one it is?

Why should a company be obliged to destroy content when there's such a high chance that the claim is incorrect. (Actually, why should they do so when there's any chance that the claim is incorrect. Surely they should let the claim/counterclaim/court process finish before acting accordingly)

49 comments:

The best solution, of course (aside from getting sensible from Degban), would be to host your content on your own servers and not "rely" on impersonal third-party services like Flickr - or indeed, Blogger.

1. Hope the ear is improving and you'll get to celebrate your birthday soon.

2. At least a copy exists, even if it's a few years old.

3. It sounds to me like your beef is actually with Flickr for being such cowards that the mere arrival of a notice is all it takes to get them deleting stuff, running around like chickens with their heads cut off. Especially if 37% are nonsense. Perhaps you should speak to them about their behaviour. They simply mustn't be allowed to just delete stuff at random without cause.

Apart from anything else, they may have a more recent copy saved on their systems that they could/should/must restore.

4. I would also suggest that you speak to Mr Eine about him serving Degban for falsely infringing not only his copyright but acting fraudulently by claiming to own property which is provably his.

@almostwitty: that depends on what you use a website for. I don't just use flickr to host images - it's a community. Hosting on my own site wouldn't give me that.

@emma6: 1: I'm not. It's agony.2: Yes. But having a copy doesn't replace the links. This is an old blog of mine where I'd used the image. It no longer has the image because it was linking back to a page that has been deleted. It's my blog so I can repair it... but the image was hosted on dozens if not hundreds of others. I don't know where they are. But each of them is now useless.3: No, my beef is not with flickr. They're not being cowards, they don't have a choice. They have to delete content when they receive a notice. That's what the law says. Youtube, blogger, twitter... they all do the same when they receive a notice.

What they could improve is the way they handle the metadata. They have to delete the photo but I'm not convinced they have to delete the whole page - which is what takes away the comments/faves/links etc.

This is for me an example that for all the great things technology can do for us, in terms of historical record, technology will also potentially leave a gaping hole in the "records" of our existence.

Dave the point you make about losing all the comments etc is really valid, and makes me think what else have we lost in this way and more importantly what will we lose by relying more on e-traffic to record everything from breaking news stories to individual thoughts and records written an visual of people lives. I guess that's something that's always been the case, but not sure many people realise that technology can erase them as much as record them.

That's my contribution, for however long it may remain in the cyberspace any-who x

Surely there should be a law put in place that makes sure that ur material put under a breach of copyright claim if taken down it is merely confiscated intact (and put in the internet police station safe :) )with comments and links left on it in case of a valid counter claim. Its like getting my donkey kong handheld confiscated at school because little joe bloggs is jelous of it and doesnt have one, only to get it back at the end of the day with my high score delted and the bateries flat because the teacher didnt have a clue how to play the thing. Whatever happened to innocent before proven guilty????

The sad thing is, I'm impressed you even found out it was a DMCA takedown. I've had friends lose perfectly innocent youtube videos who have pestered YT for ages before they got any kind of answer about what was going on. In one case, a friend's movie review was claimed as copyright by the independent producers who made the movie. Classy. It's about as baffling as it is depressing.

That would make sense if (1) the majority of people knew how to host their own website. If only a couple of million people worldwide have the know-how or inclination, we've not got much of an internet left, have we? And (2) DMCA claims can just as easily go to your ISP as to Youtube, Flickr, whatever.

I think the best thing to do is collectively tell DMCA to piss off, rather than huddle ourselves in a corner of the internet and tell ourselves that at least we are safe.

Interesting bit of detective work from you Dave. The DMCA is certainly flawed, but I agree with your comment that Flickr could behave more helpfully given how many of these claims turn out to be false. Worrying.

I am a TV editor and had a showreel channel up on Youtube. I thought a channel rather than a passworded link, as it would be good to organise my work by documentary, adverts, children's... and people could quickly access the genres of interest to them with ease.

I spent quite some time selecting sequences that I knew had been cleared by the production companies for promotional purposes - all media in world wide perpetuity, bla bla bla. I did not meta tag anything for hits and so on. I had checked with APs at the time it would be ok to use something.

Without sounding too vain (hopefully), it was a good body of award winning work that credited all the correct people and wouldn't annoy anyone with copyright issues.

I sent out a load of "newly freelance" .pdf CVs with a link. The link within a few days was to a; "This account has been terminated due to repeated or severe violations of our Terms of Service". - Which I think is entirely untrue and has (vanity again) probably lost me a bit of work.

It seems a pair of eyes in a major American broadcasting company did not bother to check that it was all above board. Grrr. Are we not allowed showreels anymore??

N.

P.S. I would have it hosted on my own site but some production companies have difficulties with QT codecs / anything but Youtube.

That's bonkers. The suggestion to use your own web space to host your images makes sense, but as a Flickr user too, I understand why you choose to use Flickr to publish your photos instead. Besides, I have my own photography site too, but I bet the same problem would have arisen, as the complainant would simply have targeted the web hosting company rather than Flickr.

This might be a bit of a long shot, but do you use www.backupify.com? If you don't, this won't help, but if you do, I think they'd be holding a recent copy of all those lost comments, etc.

Imagine if similar claims were blindly followed by other forms of media! I guess the sheer volume of 'stuff' on the internet makes a workable system hard to implement, but the system as it stands clearly sucks.

There is a possibility here that some hackers who (rightfully) opposed SOPA did in fact penetrate a few companies Degban and then started issuing DMCA takedowns to get legitimate copyright owners upset with the whole system and more inclined to oppose SOPA type legislation

ISTM the sensible thing for flickr to do would be to designate a quarantine area for pages/images under investigation, so the primary public view is gone but all data can be reinstated subject to investigation. That, of course, assumes the DMCA doesn't forbid that too...

Pretty much what Tim said. The image could be replaced with a temporary "DMCA" image, but everything else remain intact. If you don't counterclaim after x number of days, then it can be deleted.Could you request a formal restore of the page by Flickr? They will have backups, somewhere...

"Unfortunately, on February 17th this year, Flickr - who are owned by Yahoo! - deleted the image from their servers ... every blog that linked to it now has a broken link that goes nowhere and that matters because links are what make the internet the internet. With all those links broken, 6 years worth of photo-sharing has been undone."

If true, this is most odd, and by "true" I mean that the person who told you it couldn't be restored was speaking accurately.

It makes no sense for Flickr to do it this way. Much easier to hook their DMCA process into the image store as suggested by other commenters. In other words, simply replace the image by a takedown notice.

To deliberately break the web like this is an act of inconsiderate vandalism. Hyperlinks shouldn't have a sell-by date.

One of my colleagues sent me the link to this post as a heads up and I am pretty baffled by the entire thing. We do have Degban handle our DMCAs, but only for torrents and fileshare sites, and on those only videos with a duration of longer than 5 minutes. They do a very good job on this for a very very reasonable monthly fee, so all of this pretty much comes out of the blue at me.

Something seems to have gone terribly wrong somewhere as we don't touch the tubes (we have lots of affiliates uploading our clips to those) and certainly not photos on blogs or Flickr featuring artistic photography (yours is very nice, btw, Dave!).

I'm checking in with Ella at Degban to see what may have happened here and will report back on this asap. Dave: please do feel free to contact me about this mess. Happy to try to assist in any way possible. rowntree2007 @ gmail.com

It's good to see you are channelling your ridiculous pain into some good old fashioned internet investigations!

Raises some interesting questions about the transience of the internet. I'd never seen it as a permenant thing; I don't expect stuff I post online to hang around for ever, like an unrecorded conversation really. But when you think about important things that are referenced by lots of different people, well then I suppose it does potentially require an archive record of some kind. Does it? I don't know. Hmmm...

I suppose the important bit is a random comapny can issue a scary looking email to a massive multinational and be taken seriously. I find it odd that Yahoo! did not show any front in this case(and no doubt countless others).

@Emma Spreadbury: "I find it odd that Yahoo! did not show any front in this case(and no doubt countless others)"

The point is that under the terms of the DMCA they have to.

They don't have to sign up to the DMCA. They can choose not to. But when they do that, they become liable for all the content hosted on their sites. Then when someone posts a photos they don't own on one of Yahoo's sites, the copyright holder sues and it's Yahoo that pays.

So they all sign up to the DMCA. And that means they have to comply with every takedown notice received.

There are plenty of things flickr/yahoo could do better in this. I don't believe they have to delete the whole page - taking the comments etc with it. But they do have to delete the photo.

The real villains of the piece here are the DMCA - it needs to be changed so that sites become obliged to remove contested content from view until it is sorted rather than deleted wholesale. Y'know, like putting cuffs on people rather than shooting them on sight.

And of course Degban and companies like that. They're either incompetent/negligent at their job and sending out bad DMCAs or they're incompetent/negligent at their own internet security (which given their field doesn't speak well of them) and the result is bad DMCAs. Either way, their existence doesn't seem to be good for any of us.

1. The claim of copyright ownership in the takedown notice is not the thing under penalty of perjury. What is actually covered by that penalty is the claim that you are working on behalf of the company/person who is claiming copyright. Basically, if the lawyer is truthful about representing the company making the claim then he is in the clear regardless of the validity of the claim. There is also no penalty of perjury for the original company making a false claim. The counter notice you submit and the claim that the content doesn't infringe copyright IS under penalty of perjury however. It's a ridiculously lopsided system in sofar as the implementation but the procedure is a good idea.

2. The DMCA does NOT state that the hosting provider delete the content, only take it down i.e., make it inaccessible. When you file a counterclaim and no action is taken by the claimant after 14 days it is then the hosting providers responsibility to put it back up. That Yahoo didn't and merely suggested you can post it again could arguably be a breach of the DMCA. Of course, IANAL so you may want to ask someone more knowledgable and pressure Yahoo if I'm correct. They could have just been lazy, I wouldn't put it past them tbh.

I applaud you for responding to this matter rather than just letting it be like it was nothing. This says a lot about you and your company, and it has my respects. As someone who uploads original content this fiasco has struck a nerve with me, but I am happy to see that there are people who try to assist those who were wronged unjustly.

You can be sure that your company's products won't be in my blacklist of things to avoid. :D

At one point, after the last horrible false DMCA takedown at Flickr, they implemented a system where the image itself was replaced with a static phrase saying something like "removed for copyright claim" or somesuch. I've seen that page in the past. The page remained. No broken URL and no lost social activity.

Recently I had to issue a takedown to Yahoo! Copyright against someone reposting my photos to their Flickr and I noticed they were no longer using the friendlier system - they'd gone back to the nuclear option.

Layoffs at Flickr have been hard and continuous in the last few years. I suspect they have very little organizational historical knowledge and a process broke and had to be reverted to the last known good state.

Eric Hunt:"At one point, after the last horrible false DMCA takedown at Flickr, they implemented a system where the image itself was replaced with a static phrase saying something like "removed for copyright claim" or somesuch. I've seen that page in the past. The page remained. No broken URL and no lost social activity.

Recently I had to issue a takedown to Yahoo! Copyright against someone reposting my photos to their Flickr and I noticed they were no longer using the friendlier system - they'd gone back to the nuclear option."

Hey guy, I work for a web host and I can confirm here - doesn't matter. When we get a DMCA notice you comply or we shut you down until you do. Granted you can preserve your links when its all said and done, but its still a huge pain. I really do wish there was a checks and balance system. I would say at least 1 out of every 10 claims is total BS and I feel sorry for the guy. We are forced to play the strongman for faceless corporations against our customers and it sucks.

I found this post on www.eff.org:'Flickr also introduced a number of improvements to the DMCA takedown process, motivated by the recent controversy surrounding the Obama-Joker image posted by Flickr user Firas Alkhateeb. Most importantly, when a photo is removed, its title, description, comments, tags, and notes will remain available (YouTube could learn from this example!). This is an important improvement that preserves the discussion about the allegedly infringing material, something that a copyright owner is not entitled to censor with a DMCA takedown notice. Flickr will also restore the original image to its original context in response to a DMCA counter-notice, another important improvement. Too often, takedowns are sent for illegitimate censorial reasons, and if the user elects to submit a counter-notice, she should be able to restore the material to its original location, complete with its original context.'

If this was true in 2009, surely the comments should have been left as is?

Flickr don't delete it, and if they do they can restore it. Have a look at http://www.geek.com/articles/news/flickr-manages-to-restore-deleted-pro-account-gives-user-25-years-free-membership-2011023/ for more info. They can restore comments, posts, pictures, external links, etc.

According to the DMCA sec. [512(g)(2)], the service provider is required to restore the taken down material. IANAL but it sounds like Flickr themselves are now in violation of the DMCA since they didn't restore your material.

"According to the DMCA sec. [512(g)(2)], the service provider is required to restore the taken down material. IANAL but it sounds like Flickr themselves are now in violation of the DMCA since they didn't restore your material.

Regarding the "I found this post on www.eff.org:'Flickr also introduced a number of improvements to the DMCA takedown process, motivated by the recent controversy surrounding the Obama-Joker image..." I'm afraid the eff.org post isn't entirely accurate. That's what they do when the claim is made by someone in the US against someone who is in the US. It doesn't happen like that for anyone else.

@Kyle Gordon: That's interesting. I vaguely knew about that case. I sort of know they can restore it but I'm not expecting them to do so. It gets embarrassing once they've told you they simply can't for them to backtrack and make the "impossible" happen.

More to the point, I don't think this is about my individual case. While I'd love them to replace the content they removed, as per their obligation under the terms of the DMCA, if they do so, I won't really consider the issue closed.

The solution I want is for them to change the way they handle DMCAs in future. They should hide the content not delete it while the process is ongoing. And they should change the way they communicate it to their customers so that instead of assuming they're the guilty party they allow for the fact that they might not be and offer advice to that effect.

If they do all that, then whether or not they replace one page of their site doesn't really matter a jot.

But if they do replace that missing content and don't change their process for the future... well then nothing at all will have really been achieved.

Viacom did the same to me after I tagged one of my music videos with the letters MTV (A generic Hong Kong term for a Music Video)

There needs to be a burden of proof system in place. It might cost the big companies more (and make Mr Degban's job a little more difficult.) but it might stop the often random nature of their copyright claims.

Until we get a photo-sharing community site with the same coverage as Flickr, but hosted beyond the jurisdiction of the ridiculously unbalanced DCMA, users' only hope is for people with tenacity and patience to show up this sort of cowardly behaviour.

Dave, If you turn javascript off and visit http://webcache.googleusercontent.com/search?q=cache:oJuqC6vtPS0J:www.flickr.com/photos/dgbalancesrocks/85439592/+&cd=1&hl=en&ct=clnk&gl=uk (Google's cached copy of the page) you get the old comments. Doesn't fix the broken links but if you wanted to restore the comments in some form you could grab them here.

Billy T:"This 'detective work' seems to be a rehash of another sites conclusion. Timestamps appear to confirm."

Me Um... you've put detective work in quotes as if there's some claim being made by me on that score... which confuses me a little. I'm not sure what "detective work" you're referring to... but if another site has detailed the story of me having one of my photos removed from Flickr because of a bogus takedown from Degban before I did I'd be intrigued to hear about it. Do tell...

Personally I have to agree, luckily for me youtube operates on DMCA but allows you to dispute it before auto deleting the content and as long as the content isn't banned in every country world wide it will remain in your libraries.

But I recently had a similarish issue with 4 music companies making claims on "Henry hall and the BBC Orchestra version of Teddy Bears Picnic" which I though I was using under fair use, as it turned out I found the piece is public domain now but that was after all 4 companies claimed it, I disputed using youtube and they blocked the video in 237 countries saying they definitely owned it. After one slightly furious email I got a reply saying they were removing the claim as they found a mistake in their records or something.

I do agree though DMCA is annoying as hell and by the sound of it a lot of companies abuse it and many others don't let you appeal before removing the object.

@Nigel P: But you don't mean that i should have said Degban Sucks Some Serious Arse because Sucks Arse isn't a phrase. What phrase do you think I should have used? It needs to have a profanity as tame as the word 'ass' - so no F word, no C word, no cock, no dick, no bastard... all of which are more aggressive... but the same sense of invective. I can't think of one. Especially one that works for an international audience?

Also... if you read through all of this and your reaction was, "I'm not sure I approve of the chap's vocab!" I think you rather missed the point.

@Darren Jones: The google cache is useful... but I can't make it find a cache of page 2. I'm hoping that by doing so I'll turn up some comment with an obvious search term that will demonstrate quite how Degban came to locate the photo.

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